Many of Canada’s provinces aren’t eligible for so-called ‘decriminalization’ under the proposed Bill C-38 because of the way the proposed law is written.
The problem is that Canada’s feds can only implement non-criminal offenses using a piece of law passed in 1992 called the Contraventions Act. Many of the provinces have never agreed to the Contraventions Act, including British Columbia, Alberta, Saskatchewan, and Newfoundland. Renowned cannabis activist and lawyer, John Conroy, helped Cannabis Culture unravel the Machiavellian fine points.
“The provinces that disagreed,” said Conroy, “did so because non-criminal offenses are supposed to be their jurisdiction, not the federal government’s.”
Rather than risk patchwork enforcement under the Contraventions Act, the feds wrote Bill C-38 — which can’t properly be called decriminalization — as a change to the current drug law, the Controlled Drugs and Substances Act (CDSA). Under Bill C-38, Canada’s cabinet can enact decriminalization in provinces that have signed into the Contraventions Act if the cabinet wishes. However, until Canada’s cabinet does create regulations, there will be no decriminalization in any province, even if Bill C-38 passes.
A Health Canada press release dated in May revealed that the Canadian government is fully aware of the problems with the proposed law. The press release states that in provinces where the Contraventions Act isn’t law, “the court system will continue to be used.”
Arrests and court prosecutions continue
Even if the Canadian government passes Bill C-38, all the provinces sign into the Contraventions Act, and the cabinet passes decrim regulations in every province, Canadians everywhere could still be arrested for possessing under 15 grams, taken down to the station and face a day in court so said top Canadian cannabis-law professor Alan Young in a letter to the Marijuana Policy Project that explained why he wouldn’t back Canada’s proposed “decrim.”
“In other words, in enforcing the law relating to possession under 15 grams [via the Contraventions Act]the investigating officer has the discretion whether to informally ticket or whether to formally arrest,” wrote Young. “Upon a formal arrest, the offender is subject to search [which can include a strip search]and detention pending release. The trappings of the criminal process are alive and well. If the police employ a formal arrest power then the prosecution [in court]is commenced by the laying of an information, not the issuance of a ticket.”
Furthermore, Young elucidated, Bill C-38 is unclear about how courts will handle possession of between 15 and 30 grams of cannabis. It seems that the bill allows prosecutors to choose between going for a Contraventions Act violation or a summary conviction — summary conviction being how most marijuana offenses are handled today. It lets the prosecutor decide whether an offence between 15 and 30 grams should be eligible for “decrim” or not.
Criminal records continue
Millions of Canadians are under the illusion that decriminalization will mean an end to criminal records, but in fact it means no such thing. To understand why, Young wrote, we have to understand the complex doublespeak of the Contraventions Act.
For example, the Contraventions Act promises that anyone convicted under it “has not been convicted of a criminal offense” and that “a contravention does not constitute an offense for the purposes of the Criminal Records Act.”
“However,” explained Young, “Nothing in the Contraventions Act, nor the Criminal Records Act, will prevent the creation of criminal records for marijuana possession. [Because,] ironically, the Criminal Records Act is a short piece of legislation which only speaks to the removal of records for those who have received discharges or pardons [so]this protection is completely absent with respect to the proposal to decriminalize marijuana possession.
“The Criminal Records Act never defined a ‘record’ nor does it govern the operation of the RCMP’s automated criminal convictions records retrieval system (known as CPIC.)”
Which means that you could get a criminal record under “decrim” — one that you can never apply to have sealed, kept out of police information systems, or protected from American authorities, a privilege that is now reserved for other kinds of offences.
Has the government ever fooled Canadians about criminal records in the past? In fact, they have. The Controlled Drugs and Substances Act — our current drug law — passed in the 90’s was supposed to make most smalltime marijuana offenses untraceable, because there would be no fingerprinting. Young told CC that these small time offenses often make it into CPIC anyway, and then are passed on by the RCMP to American Customs and Immigration officials.
Powerful cannabis-defense lawyer Brian McAllister, the man responsible for having possession laws in Ontario struck down as unconstitutional earlier this year, thinks that the distinction between “criminal” and “non-criminal” is essentially meaningless.
“I think Bill C-38 is a real red herring in that the Americans aren’t going to make any distinctions if pot in Canada is criminal or ticketable — if you are found guilty, you will be kept out whether it is a criminal record or not,” said McAllister. “I tried to get in last week and was interrogated for about 10 minutes… the official went on and on, ‘It doesn’t matter if Canada thinks that it is a criminal offense, that it’s just a ticket. We still treat it as a bar to admission.'”
Even if marijuana possession convictions under 15 grams aren’t kept in CPIC, McAllister, Young, and Conroy all agree that smalltime marijuana convictions – whether they be criminal or not – will likely be recorded by police and kept in a database that is accessible to US authorities.
With so much sneakery surrounding the so-called “decrim” Bill C-38, what stands most revealed is how the Canadian government plans to satisfy US anti-druggies and the Canadian public at the same time, employing the latest fad in western democratic draconianism: writing persecution into the fine print and “slipping it through.”
– Contraventions Act: laws.justice.gc.ca/en/C-38.7/text.html
– Controlled Drug and Substances Act: laws.justice.gc.ca/en/C-38.8/index.html
– Criminal Records Act: laws.justice.gc.ca/en/c-47/44680.html
– Letter to Toronto Star from Alan Young: Government repackaged pot status quo